Consultation with unions in redundancy situations may be taken to be consultation with their members.

Early-stage discussion of workplace changes provides the benefit of allowing employees an opportunity to influence decisions and put proposals to avoid or minimize terminations and mitigate adverse effects.

A failure to consult, while not necessarily rendering a dismissal harsh, unjust or unreasonable in every case, may be sufficient on its own facts to lead to that conclusion notwithstanding valid operational reasons for the redundancy.

In a redundancy case, where the employer failed to consult as required by the award, the dismissal is not 'genuine redundancy' under s 389; however, the valid reason for dismissal (s 387(a)) is neutral where the position was genuinely redundant; compensation should be calculated on the basis that employment would have continued only for the period consultation would have taken.

Where an award stipulates consultation requirements for redundancy, failure to comply with those requirements is a relevant factor in assessing whether a dismissal is harsh, unjust or unreasonable, even where the redundancy is genuine and the employer had defensible reasons.

A Full Bench's approach to taking into account failure to consult consistent with award provisions as a factor indicating unfairness applies equally to enterprise agreements.

When the reason for dismissal is not related to capacity or conduct, the absence of a valid reason is a neutral consideration; and failure to comply with award consultation obligations regarding redundancy is a significant factor indicating harshness, injustice or unreasonableness.

Section 41 of the Minimum Conditions of Employment Act 1993 (WA) creates an obligation on the employer (not merely an opportunity) to inform the employee and initiate a discussion about redundancy, as evidenced by the language 'employee is entitled to be informed' and 'matters to be discussed'.

A purported waiver of rights under the Minimum Conditions of Employment Act has no effect by operation of s 5(4); an employee cannot be said to have waived statutory consultation rights merely by failing to demand them or by remaining silent through shock or diffidence.

The implied duty of cooperation, which applies to all contracts, requires a party to do all things necessary to enable the other party to have the benefit of the contract. This is anchored upon the need for one party to take a positive step without which the other party is unable to enjoy a right or benefit conferred by the contract.

The test of what constitutes 'acceptable employment' is objective and does not require the employee's personal acceptance; 'acceptable employment' is not identical employment; the employee must meaningfully cooperate in exploring alternatives; an employee's prima facie entitlement may be at risk if refusing objectively acceptable employment; each employee's individual circumstances must be considered; various factors of varying weight apply to assess acceptability.

A failure to consult does not necessarily mean a dismissal was harsh, unjust or unreasonable. Where proper consultation would not have changed the outcome, the weight given to the failure depends on whether the absence of consultation led to unfairness in practice.